The Supreme Court: From the Inside

By Kaitlyn Rentala
Kaitlyn Rentala is a sophomore in the College of Arts and Sciences at the University of Pennsylvania studying Philosophy, Politics and Economics (PPE).

​On October 8, the Supreme Court heard three major cases about Title VII and discrimination based on sexual orientation or gender identity. The first case, Bostock v. Clayton County, Georgia, which was consolidated with the second case, Altitude Express v. Zarda, dealt with whether or not sexual orientation was a subset of sex, which is protected under Title VII of the Civil Rights Act of 1964. The third case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, dealt with whether or not transgender status or gender identity was protected by Title VII of the Civil Rights Act of 1964. [1] Both cases were toted as the biggest cases to be heard in front of the Supreme Court during this term, and could prove to be landmark decisions with major ramifications for both sides. I was one of the lucky 62 members of the public to sit in on oral arguments.

Back in September, my incredible Legal Studies professor, Professor Amanda Shanor, organized a class field trip to hear the Title VII cases. We all knew it was a bit absurd to go and try to hear oral arguments for such high profile cases, but we also understood that this was a once in a lifetime opportunity. To go would be to experience history in the making firsthand. The process of getting inside the Supreme Court was extensive:getting to the Supreme Court at four in the afternoon the previous day, sleeping in the rain on the sidewalk outside of the Court building, and dealing with protestors and reporters shouting throughout the early morning hours. I got no sleep, was attacked by mosquitos, and missed my train on the account of a lost Uber driver. Yet, it was, without a doubt, one of the happiest days of my life. I would do it all again in an instant, just to witness the Court in action.

To provide some background on the three cases, the petitioner in Bostock v. Clayton County, Georgia, Gerald Bostock, is a gay man who has worked for Clayton County as a child welfare services coordinator since 2003. After joining a gay recreational softball league, Bostock received criticism for his participation in the league from co-workers. Ultimately, this led to an internal audit of his department and his subsequent firing by his supervisor [2]. Bostock filed a complaint with the Equal Employment Opportunities Commision(EEOC), and three years later filed a lawsuit against the county arguing that discrimination based on sexual orientation was a violation of Title VII of the Civil Rights Act of 1964. Similarly in the 2010 case of Altitude Express v. Zarda, Donald Zarda was a skydiving instructor who disclosed that he was a gay man to a female client, when the female client was worried about being strapped so intimately to a man. Zarda’s boss was informed and Zarda was subsequently fired. Subsequently, Zarda filed a discrimination charge with the EEOC, claiming that he was fired due to his sexual orientation and because he did not conform to male gendered stereotypes.

In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, Aimee Stephens was fired from her position as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc., a for-profit company that runs several funeral homes in Michigan, after informing her employer she would be transitioning from male to female [3]. Stephens filed a complaint with the EEOC alleging that she had been discriminated on the basis of sex. The question presented in this case inquires whether or not Title VII of the Civil Rights Act of 1964 prohibits discrimination based on transgender status or sex stereotypes.

During oral arguments for the first two cases regarding sexual orientation, Pam Karlan, the lawyer for the petitioner, primarily argued that a close reading of the text of Title VII of the Civil Rights Act of 1964 bans discrimination on the basis of sex, which intrinsically includes sexual orientation. She states, to fire a man because he is a married to another man and not to a woman is inherently discrimination based on sex. Furthermore, Karlan refutes the argument that Congress did not intend for sexual orientation to be included under sex and therefore sexual orientation is not protected under Title VII. Using the example that sexual harassment was not protected under Title VII but is not considered to be, Karlan maintained that the same parallel could be drawn to protect sexual oriention under sex. Her opposing council, Jeffrey Harris, argued that sexual orientation is distinct from sex and therefore is not protected under Title VII [4]. He further maintained that the intent of Congress while enacting Title VII should be taken into consideration, and Congress clearly did not intend for sexual orientation to be a subset of Title VII.

The attorney for the respondent, David Cole of the ACLU, asserted that Aimee Stephens was discriminated against because she failed to conform to sex stereotypes [4]. That is, Stephens couldn’t be fired for failing to adhere to traditional male stereotypes, which is inherently sex discrimination as protected under Title VII. The opposing counsel for the funeral home, John Bursch, argued that treating men and women equally does not mean therefore you must treat men as women. Citing this example, Bursch sought to subvert the sex stereotype argument.

​These cases have the capability to establish important precedent that could change the course of equality and history. Being present at the Court on that momentous day was an overwhelmingly inspirational sensation. Quite literally, I witnessed democracy and the judicial process in action. Seeing the greatest legal minds of our generation earnestly debate the merits of these cases with such purpose and intelligence served as a restorative measure in my faith in the greatness of American society.

​The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

References
​[1] “Supreme Court Hears Two Major Cases Today on Title VII and Discrimination.” National Constitution Center – Constitutioncenter.org, constitutioncenter.org/blog/supreme-court-hears-two-major-cases-today-on-title-vii-and-discrimination.
[2] “{{Meta.pageTitle}}.” {{Meta.siteName}}, 2019, www.oyez.org/cases/2019/17-1618.
[3] “{{Meta.pageTitle}}.” {{Meta.siteName}}, 2019, www.oyez.org/cases/2019/18-107.
​[4] “Justices Divided on Federal Protections for LGBT Employees (UPDATED).” Amy Howe, 8 Oct. 2019, amylhowe.com/2019/10/08/justices-divided-on-federal-protections-for-lgbt-employees/.
Photo Credits: https://flic.kr/p/WGQRCm by ​Jeff Stoltzfus